Last week, three State of Illinois employees filed a motion to intervene in Governor Rauner’s lawsuit challenging fair share fees, which is currently pending in federal court in the Northern District of Illinois.  Meanwhile, in the Southern District of Illinois, a federal judge denied the Governor’s request to remove to federal court a state court lawsuit filed by labor unions representing various groups of state employees.  The unions’ state court lawsuit challenges Executive Order 15-13, which instructs all state agencies to suspend immediately the withholding of fair share fees from state employees’ paychecks. 

In February, the Governor issued an Executive Order declaring fair share fees in all collective bargaining agreements between labor unions and the State of Illinois unconstitutional under the First Amendment.  The Illinois Public Labor Relations Act and Illinois Educational Labor Relations Act require labor unions and public employers to negotiate over the payment of fees paid to a labor union by employees who are included in bargaining units represented by those labor unions but who choose not to be “members” of those unions.  Under “fair share” provisions, non-union member employees must pay their fair share, or rather, fees to the union that are proportionate to the union’s costs associated with collective bargaining, contract administration and other activities germane to the union’s duties as the exclusive representative.  In addition to his Executive Order, the Governor simultaneously filed a federal lawsuit in the Northern District of Illinois seeking a declaration that fair share fees constitute unconstitutional compelled political speech. 

On March 9, 2015, Attorney General Lisa Madigan filed a motion to dismiss the Governor’s lawsuit.  The Attorney General argued that the Governor lacks standing to bring the lawsuit because he has not suffered any injury resulting from the payment of fair share fees.  The addition of three State of Illinois employees as plaintiffs may address this threshold issue.  The employees work for different State of Illinois agencies and pay fair share fees to either AFSCME Council 31 or the Teamsters.  The employees filed a motion to intervene and argue that they have been damaged because they are forced to make payments to unions that take political and bargaining positions they do not support.  For example, one employee objected to unions advocating for tenure and other seniority perks that benefit “senior employees who may be less effective.”  The employees argue that they have an interest in the outcome of the case, and therefore should be permitted to intervene. 

In March, the Illinois AFL-CIO, along with 26 other labor unions, filed a lawsuit in state court in St. Clair County seeking to invalidate the Executive Order.  Shortly thereafter, the Governor removed the labor unions’ state court lawsuit to federal court.  The Governor argued that the focus of the dispute is the First Amendment rights of state employees under the federal Constitution, and a federal court has jurisdiction because the suit raises a federal question.  District Court Judge Staci Yandle disagreed, and remanded the case to the state court in St. Clair County where the suit was originally filed.  Yandle held that the unions’ claims focus on state law, specifically the Illinois Public Labor Relations Act, which authorizes fair share fees.  Yandle further held that the Governor’s potential reliance on the First Amendment as a defense does not give a federal court jurisdiction over the unions’ claims. 

The Governor’s lawsuit remains pending in the Northern District, and Judge Robert Gettleman has not yet ruled on the Attorney General’s motion to dismiss or the state employees’ motion to intervene.  The labor unions’ lawsuit, meanwhile, has been remanded to state court in St. Clair County.